1.

Overview of the Cases

The Defendant produces golf course video content for golf simulator systems. It entered into a usage agreement with the owners of the Golf Courses, and thereafter produced videos recreating those golf courses, which it then supplied to third party golf simulator operators. The Plaintiff, the company that designed the Golf Courses at issue, filed an injunction and damages against the Defendant, claiming infringement of its economic rights under the Copyright Act, including the right of reproduction and the right to produce derivative works.
 

2.

Lower Court Decision (denying copyrightability of the golf course)

The lower court dismissed the Plaintiff’s case (Seoul High Court Decision 2023Na2003078, February 1, 2024), because they had failed to specifically identify the creative expressions of the Golf Courses that are separable from their functional elements. In finding against the Plaintiff, the lower court held that there were substantial constraints from the site topography (e.g., mountains affecting the layout of the clubhouse, access road, and individual holes), and that there were restrictions from the course’s functional elements, like user convenience and safety.

The court further observed that basic components (e.g., teeing grounds, fairways, bunkers, and greens) are common golf course features, and that individual holes are constrained by the rules of golf and international standards. Despite taking the aforementioned topographical constraints into account, the lower court concluded that the arrangement and combination of basic components within an individual hole, which are designed to achieve functional objectives such as play difficulty, enjoyment, and strategy, lacked the creativity required for protection as an architectural work. On this basis, the lower court dismissed the Plaintiff’s claims.
 

3.

Supreme Court Decision (overturning the lower court)

In remanding the case back to the lower court, the Supreme Court found that the overall form manifested through the selection, placement, and combination of the constituent elements of each golf course could be identified as creative expression of the design drawings, separable from its functional elements. The Supreme Court also reaffirmed that even functional works may be protected under the Copyright Act if it embodies the creator’s distinctive expression and manifests “creative individuality”.

While acknowledging that the Golf Courses in this case are subject to constraints imposed by practical and functional factors - such as the rules of golf, site topography, and user convenience, the Supreme Court determined that such practical limitations alone cannot uniformly negate creativity. A course designer can exercise creative individuality by selecting, arranging, and combining various components so as to distinguish a course (or an individual hole) from others; therefore, the existence of practical constraints does not preclude creative expression.

The Court also stated that even if a golf course’s basic components—such as teeing grounds, fairways, and bunkers—are commonly used in ordinary golf courses, they may still reflect the course designer’s distinctive expression (and thus possess creative individuality) through their selection and arrangement to form an organic combination in accordance with design intent, such as to influence course strategy, introduce variation, or harmonize with the surrounding landscape.

This decision - together with Supreme Court Decision 2017Da212095, decided on June 27, 2019, which established the criteria for determining the creativity of game works, and Supreme Court Decision 2016Da276467, decided on March 26, 2020, which first recognized the copyrightability of the aesthetic form of a golf course - reaffirms that the Court will protect works under the Copyright Act if there is originality in the overall shape based on the selection, placement, and combination of components, even in functional or utilitarian fields. Notably, these cases establish a flexible framework for copyright protection at a time of rapid expansion in the content industry and the advancement of generative AI technology.

More broadly, these Supreme Court decisions are a part of a clear trend toward robust intellectual property protection in Korea. By recognizing that creative individuality can arise from the selection and arrangement of constituent elements, the Supreme Court has expanded the reach of copyright protection. Also, when copyright protection is unavailable – as in the earlier golf course dispute (Supreme Court Decision 2016Da276467, March 26, 2020), in which course operators failed to prove copyright ownership – Korean courts have granted relief under the “catch-all” provision of the Unfair Competition Prevention and Trade Secrets Protection Act, which broadly prohibits the unfair exploitation of another’s achievements. Together, these developments reflect the Court’s clear commitment to actively protect intellectual property rights.